Wisconsin Supreme Court
Justice David Prosser is prepared to testify that during his seven years as an
Assembly leader, the legislative employees under him routinely worked on private
political campaigns, even at the Capitol, according to a brief filed Thursday by
the attorney for state Rep. Scott Jensen.

Prosser and another former legislative
leader, Joseph Strohl, acknowledge in the filing that they used their taxpayer-
funded caucus staffs for campaigning - the same type of behavior for which
Jensen faces three felonies and a misdemeanor charge. The two said maintaining
their party's grip on power in the Legislature was a key part of their duties as
leaders.

Thursday's filing is the latest bid by the
Republican lawmaker from Waukesha to avoid a trial looming this month in Dane
County Circuit Court against him and former legislative aide Sherry Schultz, who
is charged with a single count of felony misconduct in office. Judge Steven
Ebert will hear pretrial arguments in the case at 1:30 p.m. today.

Prosser, who preceded Jensen as Assembly
speaker, would testify that while he was a top leader, legislative caucus
workers attended campaign meetings at the Capitol, recruited political
candidates, gathered voter lists and set up, attended and staffed fundraisers,
according to the brief.

Prosser, 63, who has served on the state's
high court for seven years, declined to take media calls Thursday, Supreme Court
spokeswoman Amanda Todd said. Prosser was appointed to the seven-member court by
former Gov. Tommy Thompson in 1998 and elected to a 10-year term in 2001.

In the brief, Prosser said the campaign
activity took place from 1989 until 1994, while he was the Assembly minority
leader, and in 1995 and 1996, when the Republicans gained the majority and
Prosser became the Assembly speaker. Jensen served as the No. 2 Assembly
Republican under Prosser, then succeeded him as speaker in 1997. Jensen resigned
from leadership in 2002 after he was charged.

All of the activities described by Prosser
took place more than six years ago, which is the statute of limitations for
prosecuting felonies in Wisconsin.

"The legislative branch is the political
branch of government, and a legislative office is a thoroughly political
office," Prosser said in the court brief. "For the most part, every activity
that could be characterized as a campaign activity can be conceivably construed
to be an act that furthers the legislative process."

Legal scholars disagreed Thursday on whether
Prosser, by linking himself to the biggest political scandal in Wisconsin
history, was undermining public confidence in the state Supreme Court. Four
lawmakers and three legislative aides have been convicted or fined so far.

"David Prosser needs to be a little bit
careful here," UW- Madison law professor Walter Dickey said. "He might be
admitting to a crime. Even if it's not prosecutable, it undermines the
legitimacy of the judiciary if you admit to behavior that amounts to a felony."

Richard Jacobson, a private attorney and
lecturer in legal ethics at the law school, said Prosser's admission only shows
he disagrees with rulings by the 4th District Court of Appeals and upheld by the
Supreme Court that operating private political campaigns with public resources
wasn't a legitimate state duty.

"This justice is standing up very nobly for
what he believes is right," Jacobson said, adding that he disagrees with
Prosser's reading of the law. "It shows considerable honor and courage to say,
'I did something in the past that I don't think is wrong.' It's admirable really
- admirable but mistaken."

Since they were charged with misconduct in
2002, Jensen and his co-defendants in the legislative caucus scandal have
appealed the legitimacy of the case against them, a battle that landed at the
state Supreme Court last spring.

On the question of whether the defendants
should have known that using state resources to run campaigns was illegal, the
court deadlocked, 2- 2. That allowed a Court of Appeals ruling to stand that
such behavior could be prosecuted as felony misconduct in office.

Prosser and two other justices recused
themselves from the case, citing no reason.

Jensen attorney Stephen Meyer argued in his
brief that testimony by Prosser, Strohl and former leaders and caucus staffers
on the Democratic side of the Assembly would show campaign activity was
pervasive throughout the Capitol. The fact that everyone was doing it, Meyer
said, shows Jensen and Schultz didn't act with "corrupt intent."

In his statement, Strohl, who was the
Democratic Senate majority leader from 1986 to 1990, said he, too used caucus
employees to run campaigns. He said the duties of legislative leadership
including "raising money, recruiting candidates, targeting key races and
developing issues.

"Caucus staffs are instrumental in achieving
those objectives," said Strohl, a long-time Capitol lobbyist.

But Dane County District Attorney Brian
Blanchard said the Court of Appeals already has ruled in this case that the
alleged activities of Jensen and Schultz constitute "public financing of private
campaigns without the public's permission.

"There is no reasonable argument that this alleged activity
serves any legitimate legislative duty or purpose. No statute,
rule or policy sanctions this behavior," the court found.

Both Dickey and Jacobson agreed the
"everybody did it" defense probably wouldn't fly with Ebert - or the public.

"I do disagree that just because everybody
did it, that makes it lawful," Jacobson said.

Jensen and Schultz also have been pressing to
have their cases set aside on the basis of alleged "selective prosecution" by
Blanchard.

In a brief earlier this week, the two
submitted previously confidential investigative reports that showed state
staffers of the Assembly Democratic Caucus, Democratic lawmakers and their
leader, former Rep. Shirley Krug, D-Milwaukee, engaged in the same kind of
behavior that Jensen and Schultz allegedly did but weren't charged because they,
like Blanchard, are Democrats.

But Blanchard noted in his brief that he
successfully prosecuted former Democratic Sen. Brian Burke. Former Democratic
Senate Majority Leader Chuck Chvala was successfully prosecuted by the Milwaukee
County district attorney's office.

Jensen was targeted in part, Blanchard said,
because he was "among the three of four most powerful elected officials in state
government at that time (and) as such, he was more accountable for his actions
than other public officials who did not have this power."

The Wisconsin State Journal reported in March
2003 that Prosser, like Jensen, presided over a system in which Assembly
Republican Caucus (ARC) staffers worked on campaigns during state time and from
their taxpayer-funded offices.

In the criminal complaint against Jensen,
former ARC director Ray Carey said that during his tenure from 1994 to 1999, the
primary duties of his government job were campaign-related. As speaker in 1995
and 1996, Prosser headed the ARC and was Carey's direct supervisor. Prosser was
not referred to by name in the complaint.

WHAT'S NEXT

Dane County Circuit Judge Steven Ebert will
hear pretrial arguments today in the misconduct case against Rep. Scott Jensen,
R-Waukesha, and Sherry Schultz, a former legislative aide. The two are charged
with illegally using state staff and resources to run private political
campaigns. Thursday, Jensen's attorney filed a brief in which Wisconsin Supreme
Court Justice David Prosser said he also used legislative caucus staff members
to run campaigns when he was a Republican leader in the state Assembly.